1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) Criminal Action v. ) No. 13-10200-GAO ) DZHOKHAR A. TSARNAEV, also ) known as Jahar Tsarni, ) ) Defendant. ) ) BEFORE THE HONORABLE GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE STATUS CONFERENCE John J. Moakley United States Courthouse Courtroom No. 9 One Courthouse Way Boston, Massachusetts 02210 Monday, September 23, 2013 10 a.m. Marcia G. Patrisso, RMR, CRR Official Court Reporter John J. Moakley U.S. Courthouse One Courthouse Way, Room 3510 Boston, Massachusetts 02210 (617) 737-8728 Mechanical Steno - Computer-Aided Transcript Case 1:13-cr-10200-GAO Document 104 Filed 09/24/13 Page 1 of 24
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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS
)UNITED STATES OF AMERICA, )
)Plaintiff, )
) Criminal Actionv. ) No. 13-10200-GAO
)DZHOKHAR A. TSARNAEV, also )known as Jahar Tsarni, )
)Defendant. )
)
BEFORE THE HONORABLE GEORGE A. O'TOOLE, JR.UNITED STATES DISTRICT JUDGE
STATUS CONFERENCE
John J. Moakley United States CourthouseCourtroom No. 9
One Courthouse WayBoston, Massachusetts 02210Monday, September 23, 2013
10 a.m.
Marcia G. Patrisso, RMR, CRROfficial Court Reporter
John J. Moakley U.S. CourthouseOne Courthouse Way, Room 3510Boston, Massachusetts 02210
(617) 737-8728
Mechanical Steno - Computer-Aided Transcript
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APPEARANCES:
OFFICE OF THE UNITED STATES ATTORNEYBy: William D. Weinreb, Aloke Chakravarty and
Nadine Pellegrini, Assistant U.S. AttorneysJohn Joseph Moakley Federal CourthouseSuite 9200Boston, Massachusetts 02210On Behalf of the Government
FEDERAL PUBLIC DEFENDER OFFICEBy: Miriam Conrad, Esq.
Timothy G. Watkins, Esq.51 Sleeper StreetFifth FloorBoston, Massachusetts 02210- and -CLARKE & RICE, APCBy: Judy Clarke, Esq.1010 Second AvenueSuite 1800San Diego, California 92101On Behalf of the Defendant
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P R O C E E D I N G S
THE CLERK: All rise.
(The Court enters the courtroom at 9:59 a.m.)
THE CLERK: The United States District Court for the
District of Massachusetts.
Court is in session. Be seated.
For an initial status conference, the case of United
States versus Dzhokhar Tsarnaev, Docket 13-10200. Will counsel
identify yourselves for the record.
MR. WEINREB: Good morning, your Honor. William
Weinreb for the United States.
MR. CHAKRAVARTY: Aloke Chakravarty for the United
States.
MS. PELLEGRINI: Nadine Pellegrini for the United
States.
THE COURT: Good morning.
MS. CONRAD: Good morning, your Honor. Miriam Conrad,
federal public defender for Mr. Tsarnaev. And with me are Judy
Clarke and assistant public defender Tim Watkins.
THE COURT: Good morning. Thank you for the status
report. I appreciate that.
Let's start with whatever issues there may be with
respect to discovery. I guess maybe the place to start is with
the defense, who indicated there may be some -- you may be
interested in something beyond what you've already gotten. Is
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that right?
MS. CONRAD: Yes, your Honor. We do plan to deliver,
hopefully by the close of business today, to the government a
fairly detailed discovery request letter. But this is not
going to be the be-all and end-all discovery request in this
case.
We received automatic discovery -- what the government
defines as automatic discovery on September 3rd. This included
a large amount of digital evidence, including videos and
computer and telephone hard drives, but also a number of
reports of interviews with witnesses that we're going through.
Notably, missing from that discovery is information
such as interviews or grand jury testimony of family members
and other information that would -- we would deem to be
relevant and, in fact, potentially exculpatory with respect to
sentencing.
So the biggest sort of philosophical dispute we have
with the government right now is the timing of disclosure of
information that would tend to support mitigation of
punishment, which, of course, is defined under Brady as
exculpatory evidence.
It is particularly -- well, I think I would just note,
your Honor, that the local rules don't really address the
procedure for disclosure of mitigating evidence in a death
penalty case. There is timing for disclosure of mitigation in
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a usual case, but that timing doesn't really work in a
potential death penalty case where we are obligated to make a
presentation to the U.S. Attorney and to the Department of
Justice in the coming months about reasons why the government
should not seek the death penalty in this case.
There are other issues that are relatively less
global, if you will, or philosophical in nature, such as
questions regarding some of the digital evidence, questions
regarding some of the redactions -- in some cases extensive
redactions -- that have been made by the government which we
feel are unnecessary, especially in light of the fact that we
have a fairly restrictive protective order in place with
respect to the discovery that we have received.
Can I just check with my co-counsel for a moment to
see if I've missed anything?
(Pause.)
THE COURT: No?
MS. CONRAD: That's it for discovery, your Honor.
Sorry.
THE COURT: Mr. Weinreb?
MR. WEINREB: Your Honor, it's the government's view
automatic discovery is complete. And although we haven't yet
received this letter from the defense, I've heard nothing
mentioned to date that would fall into the category of
automatic discovery.
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We have provided a great deal of information, in our
view, all of the information that we were required to produce
under the law. And we've also produced a great deal of
additional information just in the event the defense finds it
useful in preparation for defense.
We produced a very detailed index to that information;
in fact, it's the same index we prepared for ourselves and
shared with the defense. And there is a quantity of evidence
that has been made available to them at this point just for
inspection and review, meaning we haven't actually given them
copies of things.
And we actually do intend, over the coming weeks, just
as a courtesy to the defense, to produce copies of things that
right now are available for inspection and review. But not
because they are automatic discovery in our view, simply
because it will expedite the case.
Until we get the request from the defense along with
whatever legal basis they're going to cite for anything else
they believe they deserve, I can't really comment on the
government's position on those matters.
THE COURT: Well, we'll let that, I guess, take its
course when the formal request is made, and then we'll get a
formal response, and I guess we'll deal with that.
You've, in the status report, suggested some timing
for that. That seems fine. The defense submission today, and
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then I guess it's basically two weeks for the government to
respond. I'm not sure -- well, I won't fine-tune it, I guess.
I'm not sure we need to wait after the government's
response another two weeks for a motion since you know what you
want and you'll know what they have said should be possible to
generate the motion, but for the sake of a week or two, I'll go
by your dates.
And then I think, just to jump ahead to that, we can
set a status conference. You suggested jointly the 12th of
November. We actually have matters scheduled then, but the
13th, the next day, is open for us. So if that's okay with
counsel, I'd like to schedule it in the afternoon of the 13th
of November at two o'clock.
MR. WEINREB: That's fine with the government, your
Honor.
MS. CONRAD: Your Honor, Ms. Clarke has obligations
out of state on the 13th. If it would be possible to either
schedule it -- if it would be possible to schedule it in the
morning on the 13th, then that would accommodate her travel
schedule, if your Honor would be so kind.
THE COURT: Yes, we could do that, I think. Let me
just get the date here.
(Pause.)
THE COURT: That's fine. If we could do it in the
morning -- then let's make it ten o'clock in the morning on the
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13th.
MR. CHAKRAVARTY: Your Honor, we'd expect to have
argument on any motions that we've filed?
THE COURT: Yes. We'll let you know that beforehand,
but, yes, that's -- I mean, the timing is such that it would be
appropriate to do that. I wouldn't see any reason not to.
MR. WEINREB: Your Honor, as long as we're on the
business of scheduling, I would just like to add that the
defense has indicated that these are preliminary discovery
requests, they may have additional ones. And I understand from
things counsel has said on the phone that some of those may be
relatively uncontroversial in the sense of they have video but
lack the Kodak that's necessary to view a particular piece of
video, or there's something redacted that they want unredacted.
We are happy to entertain those in the meantime --
there's no need to resolve the initial discovery request --
before we get to the next round, if the next round really
doesn't have to deal with the resolution first round. So we
would be more than happy to have those as soon as they're ready
and be prepared to discuss them and, if necessary, argue them
at this status hearing.
MS. CONRAD: That's fine, your Honor. That's what we
anticipated doing.
THE COURT: Okay. The more we can do that day, the
better.
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With respect to -- let me just say something about the
protective order that has been entered, jointly proposed by the
parties, and, more generally, about sealing matters in the
case.
As Judge Bowler indicated in one of her conferences
with counsel, she was concerned about the level of sealing and
urged people to look at that. And you know that since then
I've entered an order unsealing some of the matters that have
been sealed.
Unfortunately, our local rule with respect to the
impoundment of documents predates CM/ECF and other
technological advances and needs to be reconsidered. And our
local rules committee is going to undertake that. But pending
that, I thought it would be appropriate to have an
order regarding -- a procedural order regarding sealed motions.
And really, it won't be particularly surprising to anyone.
It's simply going to try to add some order to the process.
In brief, I anticipate that the order will say that
before something can be filed under seal, there must be a
motion to seal explaining the reason why the matter should be
placed under seal, and it will include a provision that is in
our local rule now that when such a motion is made, it should
indicate when the matter might be unsealed.
The order would then provide that after the motion's
made there has to be an order granting or denying the motion,
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what are the reasons for that, and then if it's granted, the
sealed matter may be filed under seal. It's simply to make
sure we have a step-by-step record of the application, the
order on it, and then the matter, okay?
MR. CHAKRAVARTY: Your Honor, just on that point --
THE COURT: Yes.
MR. CHAKRAVARTY: -- customarily when a motion is
filed, there's a time for response. In the case of some
exigency, should we file and explain whether we've been able to
obtain the assent of the other party?
THE COURT: That would be helpful, I guess. And of
course, as you know, it's not uncommon in cases like this for
matters to be filed under seal and ex parte. As a matter of
fact, the bulk of the filings tend to be that in a
CJA-regulated case where the defense is required to get
approval for various actions. And so those are, of course, ex
parte and appropriately under seal. And I think some of the
concern that has been voiced about sealing in this case may
have come from a lack of familiarity with the ordinary progress
of a CJA-controlled case.
So anyway, I anticipate -- there will be nothing
really surprising about the order. I just want to be sure that
we are turning square corners on these matters. And I hope it
won't slow things down. In other words, we're going to try
to -- you know, we'll act on the motion to seal as promptly as
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possible so the matter can then be placed on the record. And
if there's a response to be made, then the time will be started
for that response and so on and so forth.
So with respect to the protective order, which is
where I started, the protective order provides for some
sensitive material -- or information, as defined in the order,
to be filed under seal. And I think the order is -- is an
order that allows that to be done without further motion as
long as it's identified as sensitive as the parties understand
that.
I would urge that if that happens -- because some of
the examples given were personal medical information or other
private identifiers that already are to be -- under the
e-filing regimen are already to be redacted, but I would urge
that there be a redacted copy of the host document, if
possible, placed in the public record with the unredacted filed
under seal in case of sensitive information. That's with
respect to sort of -- that's a gloss on the protective order.
So I guess the next topic is something that was -- has
been addressed last week by filings, and that is when the
government expects to be able to file a notice of election with
respect to the penalty.
MR. WEINREB: Your Honor, the U.S. Attorney -- under
the Department of Justice's own internal guidelines, the U.S.
Attorney is to file a -- make a submission to the Attorney
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General that includes information that would be useful for the
Capital Case Unit in the Department of Justice, and ultimately
the Attorney General, to make a decision on whether to
authorize the seeking of the death penalty.
The U.S. Attorney intends to make that submission on
or before October 31st. The death penalty protocol asks,
essentially, the U.S. Attorney to make that no more than 90
days before a death penalty authorization decision needs to be
made, so that the Capital Case Unit, the review committee and
the Department of Justice, the Attorney General, has sufficient
time to consider it.
And just as the defense is invited to provide any
input to that decision that they wish to provide to the U.S.
Attorney, they also have a second chance to provide input to
the Capital Case Unit when the time comes. And so 90 days is
the amount that the death penalty protocol asks the government
to seek for that.
That is why we have -- we're not asking the Court to
set a deadline. We intend to file any notice respecting
seeking the death penalty as expeditiously as possible. But if
the Court is inclined to set one, then we ask that it be set no
earlier than January 31st to allow for that 30-day period for
consideration.
MS. CLARKE: Well, we're not -- good morning. We're
not asking the Court to set a notice-of-intent or
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lack-of-notice-of-intent deadline right now. What we would
like the Court to do is direct the delay in the defense
submission -- mitigation submission.
We're really talking about a couple of things here,
and one is fairness. And the government filed a short brief on
Friday about the authority of the Court to weigh in on the
scheduling matters. And we can file a brief this week setting
forth what we think is the Court's authority to do that, should
the Court want us to do that.
We have attached the CJA guideline and Judge Gleeson's
memo -- 2008 memo -- which sort of sets forth the reasons that
the Court should weigh in on that scheduling. And it was a
process by which the Department of Justice was involved. So
it's not like some judges have imposed some authority on the
Department of Justice; they were involved in the promulgation
of that guideline, and it is a guideline that is aimed at
fairness and a reasonable opportunity for both sides to do the
work necessary to make a reasonably accurate determination
whether the government should or should not seek the death
penalty.
The government has said in its pleading that gave us
an August 23rd deadline initially that we asked for some more
time. It's a little bit more complicated than that. The
government, without notice to us, without discussion, gave us
an August 23 deadline, which was some ten days before
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production of any discovery in the case. And we essentially
wrote back and said, "You know, this is a big, complex case.
We agreed to certain decline extensions that you requested, and
we'd request a reasonable opportunity to prepare for this
presentation. Post-discovery we'd like to meet with you and
talk about it." And without any of that, their meeting and
talking about it, the government then decided an October 23rd
mitigation submission deadline would be appropriate.
It's in the absence of some pretty critical discovery
that we believe that the government has. Now, the government
has taken a position with us, "Look, we know what we have, and
we don't need you to comment on it." Well, that sort of defies
the role of defense counsel, and it seems to me the Attorney
General of United States would like to know whether they have
accurate information that they're considering in making the
determination of whether or not to seek the death penalty.
So we think it's a matter of fairness that the Court
should regulate the scheduling process. If the government
needs a deadline for the notice of intent, that's a matter for
another day. We think that when the government sees our
letter, we hope they will reconsider their position on what we
view as critical Brady exculpatory evidence with regard to
penalty.
I recognize that the local rules don't directly
address death penalty cases, but the spirit does, because the
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spirit is that you get sentencing -- relevant sentencing
material prior to the sentencing process. And the Department
of Justice making a decision about the death penalty is part of
what we really think of as the sentencing process.
So we'd ask that the Court do two things today: One
is delay the mitigation submission deadline and set it after
we've had an opportunity for the Court to rule on -- or the
government to reconsider its own view of what is Brady.
I can't stop without reminding the Court that it was
at the government's request that the -- and our acquiescence in
a collegial sense that they delay the indictment an additional
30 days -- and it was at the government's request and for good
reason, the complex complexity of the case, that we agreed to
the delay of the initial -- the production of automatic
discovery.
So it's a little bit stunning for the government now
to say that it's the defense delaying things, and that it's six
months after the event that the defense wants more time. We'd
be well ahead of the game, had the government not asked for and
we accessed, again, an extension of time to file the indictment
and an extension of time for the automatic discovery.
So what we would ask the Court to do is vacate the
August 23rd deadline and reset that as we -- after we've had an
opportunity to convince the government their view of Brady is
wrong or the Court has reevaluated.
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THE COURT: Mr. Weinreb?
MR. WEINREB: Your Honor, the deadline of August 23rd
isn't an order of the Court --
THE COURT: I think you're both talking about October
31st.
MR. WEINREB: October 31st. Thank you.
The Attorney General has the -- the law requires the
Attorney General to file a notice of intent to seek the death
penalty in a case where the government intends to seek it. The
law does not require that the Attorney General make that
decision in any particular way or on any particular timeline.
We don't question the Court's authority to set a
deadline for the Court to file a notice, but how the Attorney
General makes up his mind, what information he deems is
appropriate to consider, according to what timeline, are all a
pure executive function. The deadline that the -- the deadline
set by the death penalty protocol are simply internal Justice
Department -- Department of Justice matters that the Attorney
General has decided upon for the orderly progression of cases
within the Department of Justice.
It doesn't clearly -- clearly it doesn't create any
rights in the defense, and I don't believe that the defense has
any authority to come in here and say that as a matter of what
they perceive to be fairness, or what they deem to be a
reasonable time, they can subgrade that into a law that then
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the Court is free to impose on the government in making this
decision.
The Attorney General has deemed this to be a
reasonable time and the -- I think that although it's a
non-judicable question, we believe -- we think that six months
is a reasonable time in a case like this. Although it is true
that the defense has not had an opportunity to thoroughly
review and comment on every piece of the government's evidence,
the U.S. Attorney in this case is fully aware of all the
government's evidence, and in order to make this decision, the
Attorney General does not need the defense's thorough
consideration and commentary on all of it.
What we seek from the defense presentation is whatever
they may have come up with through their own investigation of
the case. And that, added to what the government has come up
with from its investigation, is sufficient to make the
recommendation or the decision in this case. So I don't
believe the defense's argument is well taken as a matter of
law, as a matter of fairness, or as a matter of common sense.
THE COURT: Ms. Clarke?
MS. CLARKE: Your Honor, the government did file
something late on Friday, mid-afternoon Friday. If the Court's
concerned about its authority, we could file something this
week regarding that. And I can tell you that there are two
district courts that have said, "We've got the authority to
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delay the mitigation submission," and two district courts that
say no.
And so I think that the Court can look at that. It's
the -- it's really the implementation of Judge Gleeson's memo
and the guideline that the Department of Justice did
participate in and buy into.
It's of concern that the government believes that it
can make a decision -- I don't think the Attorney General of
the United States would agree with this. But it's pretty
stunning to say that they can make a decision based on what
they know without some defense input. They may have a
completely erroneous story, that I think the protocol is
designed to help -- allow us to help them see a different way.
And to just doggedly go forward after getting extensions of
time which delay this whole process, at their request, would be
unfair.
But on the matter of the Court's authority, we would
be happy to file a brief in the next couple of days just at
least advising the Court of the status of the case law.
THE COURT: Okay. Well, I think for the time being I
will not set a date by which the Court must be notified of the
election. I understand the time frame of the protocol. I
think not only the brief that Ms. Clarke just referred to from
the defense, but also, I'd like to get a sense of the
additional discovery requests and the government's response
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because that may influence what is a realistic date for
notifying the Court.
Let me ask, because we just touched on what further
discovery might or might not occur, there was a reference in
the status report about substantive motions from the defense.
Can you tell us anything about that? Do you anticipate
any -- on the discovery you have now. Obviously, if something
comes up in additional discovery, that has to be evaluated.
But on the discovery now, do you anticipate any substantive
motions?
MS. CLARKE: I think our problem is we're -- you know,
we received a substantial amount of stuff and we're not in a
position really to stake that out right now. We hope to be
able to advise the Court now by the 12th of November.
THE COURT: Okay. Let me ask a more pointed question:
Do you anticipate any objection to venue?
MS. CONRAD: I think it's too early to address that,
your Honor. We just haven't really thought about it, frankly.
THE COURT: Okay.
MS. CONRAD: Your Honor, may I just ask for
clarification on one point? You indicated that you would
accept a brief from us on this issue of the Court's authority
regarding the death penalty protocol, but you also mentioned
you would like to get a sense of the discovery request?
THE COURT: Well, you're going to be filing the
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request today, I understand.
MS. CONRAD: Yes. But we hadn't anticipated filing
them with the Court; we anticipated just sending them to the
government. So I don't know if the Court wants us to file them
with the Court. If we could, we would probably be asking --
THE COURT: I guess so. I guess my chance to be
looking at them would be when you move after you're
dissatisfied with the government's response.
MS. CONRAD: Unless you want us to file them under
seal.
THE COURT: We can follow the normal practice. I
don't have to get involved in the negotiations.
MS. CONRAD: Okay. Thank you.
THE COURT: So I guess that would be after -- on your
schedule, that would be after October 21st.
MS. CONRAD: Right.
(Pause.)
THE COURT: I guess we have a problem with the date
that we suggested. That's what the clerk was passing me a note
on. He tells me that the sentencing in United States versus
Bulger is set for that morning, so I think it would be
impractical to try to have a case conference in this case at
the same time.
So let me look at the calendar.
MS. CONRAD: I'm wondering if the 18th or 19th would
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be possible, your Honor?
MR. WEINREB: Your Honor, if I might be heard, I would
suggest compressing the schedule then. Because if the Court
wants the benefit of defense motion on discovery before the
current deadline that the government has set for defense
submission, it's not going to get it on the current schedule.
But if the defense is prepared to file their discovery
request today, we won't need two weeks to respond. I mean,
they'll need two weeks to file a motion. And there's no need
then to set the further status conference even further out. I
would suggest we set it earlier and the parties simply work out
a more compressed schedule to address these matters.
MS. CONRAD: That's fine with us.
THE COURT: Well, how about just taking one week out
of each of those periods; that is, the government response to
today's request by next Monday, and then the following Monday,
the 7th, would be a motion due. And then you want two weeks
for the response or do you want to respond faster than that?
MR. WEINREB: Actually, on that score, we would like
the two weeks because we have no idea what's coming.
THE COURT: Right. Right. That's fair enough. So
that gets us to the 21st of October. So we can move it maybe
forward. Actually, we could do it the 1st or 2nd of
October -- I'm sorry. I'm in the wrong month.
MS. CLARKE: Will the 4th work?
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THE COURT: No, the 4th will not work.
MS. CONRAD: Your Honor, if I may, if the government's
goal was to get a status conference before the current deadline
for the submission to the U.S. Attorney, which I believe is
actually October 24th, then --
MR. WEINREB: No, that wasn't the goal.
MS. CONRAD: Okay. Then I misunderstood.
MR. WEINREB: It was simply to allow the defense time
to file their motions so the Court could have a sense of what
the discovery requests are.
MS. CONRAD: Okay.
THE COURT: How about Friday, November 8th?
MS. CLARKE: Your Honor, if it could be a Monday,
Tuesday or Wednesday, that would work a whole lot better.
(Pause.)
THE COURT: Let's go back to the 12th of November. I
have a trial scheduled the previous week, which may go into
that week, which is why I avoided the morning before, but we
can perhaps work around it. So let's make it ten o'clock on
the morning of November 12th for the next status conference.
MS. CLARKE: Have we compressed the other deadlines
and --
THE COURT: Yes, we have compressed the other
deadlines but...
MS. CLARKE: And we'll still have the hearing on the
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12th?
THE COURT: Well, yes, among other things. In other
words, that's the next status conference. One thing we can
consider are the motions.
Any other matters now?
MR. WEINREB: Nothing from the government, your Honor.
MS. CLARKE: Does the Court have a preference as to
when we should file the brief this week?
THE COURT: No.
MS. CLARKE: By Friday?
THE COURT: By Friday is fine.
MS. CLARKE: Thank you, your Honor.
THE COURT: So we'll set the next status conference on
the 12th of November. The time intervening will be excluded
under the Speedy Trial Act pursuant to Section
3161(h)(7)(B)(ii), complex case requiring additional time. I
think that's fairly obvious.
Okay. That's all for now. I would -- if counsel for
the defense are available, I would like to have a very brief ex
parte conference regarding the budget for the case.
MS. CLARKE: Thank you, your Honor.
THE COURT: We'll be in recess.
MR. WEINREB: Thank you, your Honor.
MR. CHAKRAVARTY: Thank you, Judge.
THE CLERK: All rise for the Court.
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(The Court exits the courtroom.)
THE CLERK: The Court will be in recess.
(The proceedings adjourned at 10:33 a.m.)
C E R T I F I C A T E
I, Marcia G. Patrisso, RMR, CRR, Official Reporter of
the United States District Court, do hereby certify that the
foregoing transcript constitutes, to the best of my skill and
ability, a true and accurate transcription of my stenotype
notes taken in the matter of Criminal Action No. 13-10200-GAO,
United States of America v. Dzhokhar A. Tsarnaev.
/s/ Marcia G. PatrissoMARCIA G. PATRISSO, RMR, CRROfficial Court Reporter
Date: 9/24/13
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